California high court upholds taking DNA from arson suspect

By SUDHIN THANAWALAApril 2, 2018

FILE - In this Feb. 17, 2012, file photo, senior criminalist Michelle Halsing works on mitochondrial DNA testing at the State of California Department of Justice Jan Bashinski DNA Laboratory in Richmond, Calif. A California law that requires the collection of DNA from anyone arrested on suspicion of committing a felony faces a key court ruling that could strike it down. The California Supreme Court will decide Monday, April 2, 2018, whether the law violates the state and U.S. constitutions in a closely watched lawsuit. (AP Photo/Jeff Chiu, File)

SAN FRANCISCO (AP) — A California law that required an arson suspect to provide a sample of DNA when he was booked into jail did not violate his privacy, the California Supreme Court said Monday.

The 4-3 ruling upheld the collection of DNA from Mark Buza, saying authorities had probable cause to arrest him for a serious crime. But the decision left open the possibility of other legal challenges to the DNA law.

“The court was looking very narrowly at the case before it and was careful to avoid answering questions that were not specifically raised by Mr. Buza’s situation,” said Michael Risher, senior staff attorney at the ACLU Foundation of Northern California, which filed a brief on behalf of Buza in the case.

Buza was suspected of setting a police car on fire in San Francisco but refused to provide a DNA sample after his arrest. He was later convicted of arson and refusal to provide a DNA specimen.

A law voters approved in 2004 requires all adults arrested on suspicion of a felony to provide a cheek swab immediately following arrest or during booking. The DNA sample is sent to a state lab for analysis.

Critics say the law violates people’s privacy by giving law enforcement access to their genetic material even before they are charged or convicted.

Law enforcement can continue to collect DNA from felony suspects under Monday’s decision, said Jayann Sepich, the founder of DNA Saves, a group that pushes for state laws to expand DNA databases and filed a brief in Buza’s case.

More than half of all states allow for DNA collection when a suspect is arrested or charged.

“I’m jubilant for victims, I’m jubilant for people who won’t become victims because we know that taking DNA at the time of felony arrests actually prevents future crime,” said Sepich, whose daughter was raped and murdered in New Mexico in 2003.

A 2013 U.S. Supreme Court ruling upheld a similar Maryland DNA collection law.

But a California appeals court said in 2014 the U.S. Supreme Court decision did not apply in Buza’s case in part because of significant differences between Maryland’s law and California’s law.

Maryland’s law, for example, only allows the DNA of suspects to be tested after they have been charged with a crime. California’s law allows testing even before charges are filed.

The California law also applies to all felony suspects who are arrested regardless of the seriousness of the alleged crime and does not call for the automatic destruction of the DNA sample if the person is cleared.

California’s 1st District Court of Appeal said in its 3-0 decision in 2014 that the state Constitution’s ban on unreasonable search and seizure prohibited collecting DNA by cheek swab without “independent suspicion, a warrant or even a judicial or grand jury determination of probable cause.”

The California Supreme Court said Monday that Buza’s crime was serious, and he never contested that there was probable cause for his arrest.

But Associate Justice Leondra Kruger, writing for the majority, said the DNA collection law “may raise additional constitutional questions that will require resolution in other cases.”

J. Bradley O’Connell, an attorney for Buza, said the court left open the possibility of lawsuits from people who successfully challenge the basis for their arrests and people who are arrested on suspicion of felonies that are not considered serious.

“In the meantime what that means is that the current regiment is going to remain on the books,” he said.

In a dissenting opinion, Associate Justice Goodwin Liu called the DNA collection a “biological dragnet” and said requiring DNA from people who are not even found to be lawfully detained was not a far step from collecting and retaining the DNA of even law abiding citizens.